“The six Assembly Special Elections did not have competitive party primaries that continued the worst traditions of Albany dysfunction. Worse, the process had no accountability to the voters because the candidates were picked by the party leaders not the voters. It is a badly flawed process and a constitutional remedy should be considered,” said New Roosevelt Founder Bill Samuels

The six Special Elections held across New York State last Tuesday for the open Assembly seats highlight a fundamental flaw with choosing that process over a traditional primary and general election. In every case, Governor Cuomo had the choice to allow for a primary and general election, which would have adhered to his campaign platform of protecting the right to popular election, and instead chose Special Elections. Special Elections deprive voters of the choice to pick the strongest candidate from a wide field to represent their party.

Samuels added that the State should adopt the principal put forth by state constitutional expert SUNY Professor Gerald Benjamin, who in his research on this subject for a forthcoming Constitutional Change project, an effort to examine constitutional reform in New York, wrote that “to the greatest degree practicable, vacancies in elected offices should be filled by elections held at a time and through a process that will maximize competition and accountability.”

According to a recent report by Citizens Union, the State Assembly, 31 percent of State Assembly members, or 46 of 150 were first selected through this same flawed special election process. Under state election law, had the Governor not opted to call a Special Election, there would have been a September primary in which candidates could have run to be the Democratic nominee, leading to a November election (due to the fact that the seats were vacant during the regular petitioning process).

The six Democratic candidates elected in the Special Elections are more likely to be accountable to the party leaders that selected them than the voters in districts where Democratic voter registrations outnumber all other parties.

Two races in particular highlight how broken the Special Election process has become, why they deprive voters of the choices they deserve and create uneven playing field for those candidates who do run.

In the case of the 54th Assembly District in Brooklyn, Democratic reform 26 year old candidate Jesus Gonzalez, who was running on the Working Families Party line, narrowly lost to the candidate picked by the Brooklyn Democratic Party bosses by less than 650 votes. Had he been able to compete on a level playing field in a Democratic primary the outcome might have been different.

“The special election process is a farce which favors party bosses over the democratic power of the people,” said Brooklyn State Committeeman Lincoln Restler a leader of the New Kings Democrats. “We need real reform now so that rising stars like Jesus Gonzalez and impressive congressional candidates have a fair playing field to win elections.”

In the case of the 9th New York District of the House of Representatives, the failure of Democratic Assemblyman David Weprin to hold former Rep. Anthony Weiner’s seat by losing to conservative candidate Bob Turner, raises the question of what would have happened if New York State Law had allowed for the traditional open Democratic primary process to proceed in electing Anthony Weiner’s replacement with a general election to occur in November.

SUNY Professor Gerald Benjamin, an expert on the New York State Constitution points out that it currently states in Article XIII Section 3 states that “[t]he legislature shall provide for filling vacancies in office…” however it is silent on the exact methodology as to vacancies in the legislature itself.

When vacancies in the State Senate and Assembly occur the New York Public Officers Law §42 states provides for the regular process of Primary and General Election or allows the Governor to call a Special Election that allows parties to select candidates by their own rules rather than having a Primary Election.

Professor Benjamin continued, “the choice of those with governing authority in fair and open elections, and their further accountability through the electoral process, is a sine qua non of representative democracy. A corollary, as the Court of Appeals said in Ward v Curran in 1943 is that ‘a vacancy in an elective office should be filled by election as soon as practicable after the vacancy occurs.’” (266 App Div at 526)

“Additionally however, experience with filling legislative vacancies by election suggests the need for attention to the openness and competitiveness of the nominating process, and the timing of these elections to assure maximum participation,” adds Professor Benjamin.

In The NEW NY Agenda then-Gubernatorial candidate Andrew Cuomo espoused the value that “[w]e must also protect a right that ranks ‘among our most precious freedoms’ – the right of popular election” as he cited the United States Supreme Court Williams v. Rhodes, 393 U.S. 23, 30 (1968).

“Governor Andrew Cuomo had a choice in six Assembly Districts (23rd, 27th, 54th, 73rd, 116th, and 144th) between allowing a Party Primary to select candidates to fill these vacancies or calling a Special Election thereby frustrating ‘our most precious freedom’ to ‘popularly elect’ our party candidates to run in the General Election in November,” said Samuels.

“Governor Cuomo made a mistake in calling the Special Elections and going forward he should use the Primary process to elect progressive idealists on both sides of the isle that will help him to reform Albany,” stated Samuels.

Samuels argued that low volunteerism on Democratic campaigns in the Special and low turnout by Democrats in yesterday’s election can be partially attributed to a lack of enthusiasm by the activist core of the Democratic party.

“The lesson of Gonzalez and Weprin losing their Special Elections is that it is a fundamentally flawed and undemocratic process does not give voters a full range of choices,” Samuels said. “It is in Governor Cuomo interest, going forward for reform in Albany, not to pick the politically expedient option. He should be giving voters more choices, not less. And the only way to do that is to allow the Primary Elections instead of calling Special Elections in their place.”

In order to correct the Special Election problem Governor Andrew Cuomo and the Legislature must strike out New York Election Law §6-114 which currently allows parties to select candidates using their own rules and replace it with Primaries.

“In the interim, if we are serious about breaking the grip of local party bosses (who derive power through the ability to anoint a candidate during a special election), truly reforming Albany and creating the nation’s best legislature, we need to stop using special elections as a means of circumventing the democratic electoral process in this state,” concluded Samuels.